ASHOKE KUMAR DASADHIKARI,J. - (1.) Order impugned dated 19th May, 2014 passed by the learned State Consumer Disputes Redressal Commission, West Bengal, in M.A. No.115 of 2014 arising out of F.A. No. 620 of 2013 rejecting the petitioners/developers' application praying for an order issuing direction upon the opposite party no.1 to show cause as to why appropriate proceeding under Section 27 of the Consumer Protection Act should not be drawn up against him and thereafter to draw up a proceeding and appropriate order may be passed and the petitioners/developers have also prayed for an order directing the respondent no.1/complainant to restore possession of flats A-3 and A-4 of the premises in question to the developers/petitioners is under challenge in this re-visional application.
(2.) In the present case the opposite party no.1/complainant claimed that the petitioners/developers were promoters. The complainant along with proforma opposite parties being the proforma respondents entered into a development agreement with the developer on May 24, 2007 for development at premises no.5, Russa Road, South 3rd Lane, P.S. Jadavpur, Kolkata-700033. The development agreement contained certain terms and conditions. The complainants alleged before the District Forum constituted under Consumer Protection Act that in terms of development agreement complainants were entitled to get three complete habitable flats, two car parking spaces, two office rooms, one puja room, entire roof of Block 'A' of the building at the said premises. It was alleged that the developers failed to hand over complainants' allocation including two office rooms with completion certificate within 55 days from the date of taking possession of the said tenanted portion. Since the developers did not hand over possession of the complainants' allotment including office space with completion certificate, the complainants being the consumers within the meaning of Consumer Protection Act, 1986 filed the complaint case being CC No.107/2012 claiming compensation and a direction upon the developers to hand over khas possession of three complete habitable flats, two car parking spaces, two office rooms, one puja room, entire roof of Block 'A" of the building at 5, Russa Road, South 3rd Lane, P.S. Jadavpur, Kolkata-700033 along with completion certificate issued by K.M.C. to the complainants. Further prayer was made for direction upon the developers to pay Rs.3 lacs to the complainants as compensation for non-completion of the project and to hand over khas possession of complainants' allotment along with completion certificate within 55 days from the date of taking possession of old structure, etc. The complaint case was contested by the developers/petitioners by filing written objection. Learned District Consumer Disputes Redressal Commission allowed the complaint case in favour of the complainants/opposite parties. The developers were directed to hand over the complete property in question as per development agreement along with completion certificate within one month from the date of passing the order, failing which the complainant shall be at liberty to put the decree into execution in accordance with law. The developers were also directed to pay sum of Rs.3 lacs as compensation for nondelivery of the allocated area within 55 days and a sum of Rs.5 lacs for mental pain and agony and cost of Rs.25,000/- as costs of the present proceedings, total amounting to Rs.8,25,000/- within one month from the date of passing the order, failing which the said amount shall carry an interest at the rate of 10% per annum from the date of default till realisation. Against the order of the District Forum the developers/ petitioners preferred an appeal before the State Consumer Disputes Redressal Commission being First Appeal No.820 of 2013 alleging that the District Forum have passed the decree without going through the development agreement dated 24th May, 2007 and as per terms and conditions of the deed of agreement for development it would appear that contractual obligation with regard to hand over vacant possession of the said premises to the developers within twelve weeks from the date of agreement and upon getting the possession, developers would complete the proposed building within thirty-six months and to hand over possession within fifty-five days thereafter. According to the developers, no cause of action has arisen to initiate such proceeding, etc. The developers/ petitioners questioned the quantification of damages so awarded. According to the developers/petitioners, the District Forum ought to have dismissed the said case. In that appeal the developers/appellants before the State Forum moved an application for stay of the decree passed by the District Forum. In the meantime, the execution case was filed by the complainant/opposite party. The District Forum after hearing both sides and on perusal of papers on record directed that all further proceedings of the execution case would remain stayed till the next date i.e. 8th October, 2013 and interim order was extended from time to time and continuing till today. In course of pendency of this appeal it is alleged that the complainant taking advantage of absence of the developers/petitioners herein with the help of complainant's family members including female members in utter disregard and in utter disobedience of the order passed by the Hon'ble Commission broke open the padlock on the collapsible gate of the aforesaid flats and entered into the said flats without even any order passed by any competent court of law. It was alleged that a complaint was lodged with local police station but no action was initiated on the same. The developers/petitioners filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 stating the entire facts and circumstances. The application was moved before the learned Additional Chief Judicial Magistrate at Alipore. The learned Chief Judicial Magistrate was pleased to direct the Officer-in-Charge, Jadavpur police station to treat the application being case No. AC 210 of 2014 as F.I.R. and to investigate the same. It was alleged in the affidavit that the complainant has forcefully entered into the flats allocated to him in clear violation of the order of stay passed by the appellate forum. The complainant has clearly interfered in course of administration of justice. It was alleged that the complainant has taken properties in question which he was not otherwise entitled to till the disposal of the appeal and accordingly, a prayer was made to issue show-cause as to why appropriate proceeding under Section 27 of the Consumer Protection Act, 1986 should not be drawn up against the complainant and for further consequential action for wilful disobedience of the order passed by the State Commissioner. However, prayer was made for restoring back of the flat A-3 and A-4 of the premises in question. The said application was heard on contest. By an order dated 6th March, 2014 the State Consumer Disputes Redressal Commissioner passed an order that the miscellaneous application should be heard along with merits of the appeal otherwise the point raised in miscellaneous application cannot be adjudicated properly. Accordingly, a direction was given that miscellaneous application bearing No.115 of 2014 be heard along with merit of the appeal. However, on prayer of developers' learned Counsel a different date of hearing of the appeal was fixed since the developers/petitioners wanted to challenge the order dated 6th March, 2014 before the appropriate forum.
(3.) The developers/petitioners moved the re-visional application being C.O. 778 of 2014 before this Hon'ble Court. Learned Single Judge of this Hon'ble Court after hearing both sides disposed of the re-visional application with a finding that the order impugned is not sustainable and accordingly, the order was set aside. A direction was given upon the State Commission to hear out the said miscellaneous application being M.A.115 of 2014 independently and not along with the appeal itself after affording an opportunity to the opposite party to file written objection thereof. This Court passed an order that the State Commission would make all endeavour to dispose of the said application within four weeks from the date of communication of that order. It was mentioned that this Court did not go into the merit. Thereafter, the miscellaneous application was heard by the State Consumer Disputes Redressal Commission and the miscellaneous application was disposed of by the order impugned dated 19th May, 2014. While considering the miscellaneous application the State Commission recorded that the complainant contended specifically that partial possession was given without issuing possession letter. The Appellate Forum considered the evidence laid down by both sides at the time of trial and referred to answer given against question no.43 when it was recorded that opposite party no.1 being the developer had only handed over the flats without possession letter and copy of completion certificate allowing the complainant to do extra work as per his choice. The complainant made various works by appointing men and mistries at his own costs and said flats were under his possession and further under his lock and key.;